Trump Public Charge Rule blocked by 3 Federal Courts

Judge George Daniels of the Southern District of New York issued the temporary injunction on October 11, 2019 and called the proposed Trump public charge rule, “unlawful, arbitrary and capricious.” Similar rulings were issued later in the day by judges in California and Washington state.

Under the proposed Trump public charge rule, an immigrant might not be permitted entry to the U.S. or granted a green card if the individual “is likely at any time to become a public charge,” meaning they might rely on the government as their primary means of support.

According to the U.S. Citizenship and Immigration Services website, “age, health, family status, assets, resources, financial status, education and skills” will be considered when determining whether someone is likely to be considered a public charge.

The public charge test isn’t new – it has been codified in immigration law for more than 100 years. In the past, the public charge test applied only to immigrants who used cash assistance from the government, or those who needed long-term institutional care.

But the new definition of what is considered a “public charge” would have expanded to include the Supplemental Nutrition Assistance Program (SNAP) benefits, Section 8 housing, public housing, Medicaid and Medicare Part D for the first time.

Trump public charge rule will be on hold until the courts decide whether it can go into effect or not.

In a statement, American Immigration Lawyers Association executive director Benjamin Johnson welcomed the court decisions, before the rule “started hitting families, businesses, and communities across the nation,” Johnson wrote. “To quote Judge Hamilton, ‘DHS’s new definition of ‘public charge’ is likely to be outside the bounds of a reasonable interpretation of the statute.'”

For more information on Trump Public Charge Rule,

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Public Charge Rule Expanded to Deny Green Card Faces Legal Challenges in U.S. Courts

On Wednesday, August 14, 2019, DHS published a final rule redefining the public charge ground for denying green card issuance. Lawsuits have already been filed in multiple jurisdictions, raising questions whether the rule will go into effect October 15, 2019.

The new public charge rule removes the consideration of whether an individual is primarily dependent on public benefits, redefining public charge as a noncitizen who receives a specified public benefit for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).

The final rule at 8 CFR 212.21(b) defines a public benefit as:

  1. Any federal, state, local, or tribal cash assistance for income maintenance, including:
    1. Social Security Income (SSI), 42 U.S.C. 1381 et seq.;
    1. Temporary Assistance for Needy Families (TANF), 42 U.S.C. 601 et seq.;
    1. Federal, state, or local cash benefits programs for income maintenance (often called “General Assistance” in the State context, but which also exist under other names);
  2. Supplemental Nutrition Assistance Program (SNAP), 7 U.S.C. 2011 to 2036c;
  3. Section 8 Housing Assistance under the Housing Choice Voucher Program as administered by HUD under 42 U.S.C. 1437f;
  4. Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under Section 8 of the U.S. Housing Act of 1937 (42 U.S.C. 1437f);
  5. Medicaid, with certain exceptions, such as benefits received by individuals under the age of 21 and pregnant women (or for a period of 60 days after the last day of pregnancy); and
  6. Public housing under section 9 of the U.S. Housing Act of 1937

A sufficient affidavit of support will NOT be outcome-determinative as to whether an individual is likely at any time in the future to become a public charge. Rather, to make that assessment, USCIS adjudicators will apply a complex totality of circumstances test that weighs the alien’s age; health; family status; education and skills; and assets, resources, and financial status, taking into account a broad range of positive and negative factors.

USCIS notes in the final rule that it interprets “likely at any time” to mean that it is “more likely than not” that the individual at any time in the future will receive one or more public benefits as defined by the rule.  One heavily weighted negative factor is an applicant’s receipt of specified public benefits for 12 or more months in the aggregate within any 36-month period, beginning no earlier than the 36 months prior to the application for adjustment of status or adjustment.

The public charge rule, which is vastly more restrictive than current policy, could result in significantly higher USCIS denial rates of adjustment of status applications subject to public charge determinations. Moreover, the multi-factor test will leave substantial discretion to adjudicators and could produce inconsistent and unpredictable decision-making. Additionally, the rule will prove burdensome for the public and DHS alike. It requires that adjustment applicants subject to public charge determinations prepare and submit lengthy Forms I-944, Declaration of Self-Sufficiency, with their adjustment filings. USCIS’s review of hundreds of thousands of these new forms each year will further slow the agency’s already severely delayed case processing.

For more information on public charge, 

text | whatsapp | call 407-292-7730 or email gail@gaillaw.com

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Copyright © 2019, Law Offices of Gail S. Seeram. All Rights Reserved.

Immigration Lawyer Explains Affidavit of Support

Immigration Lawyer Explains Affidavit of Support

An affidavit of support is a document that must be completed by all petitioners for family-based and some employment based sponsorship. In the affidavit of support, the petitioner or sponsor sign to accept financial responsibility for another person, usually a relative, who is coming to the United States to live permanently. Since the requirements are so stringent and an incorrect affidavit of support can lead to a denial of an immigrant visa petitions, it is recommended to seek legal assistance from an immigration lawyer. (more…)